Via Bench Memos, I recently came across what appears to be a transcript of Senator Obama's address to the Planned Parenthood Action Fund on July 17, 2007, in which he spoke about the law and the Constitution. An excerpt:

I think the Constitution can be interpreted in so many ways. And one way is a cramped and narrow way in which the Constitution and the courts essentially become the rubber stamps of the powerful in society. And then there's another vision of the court [sic] that says that the courts are the refuge of the powerless. Because oftentimes they can lose in the democratic back and forth. They may be locked out and prevented from fully participating in the democratic process.

That's one of the reasons I opposed Alito, you know, as well as Justice Roberts. When Roberts came up and everybody was saying, "You know, he's very smart and he's seems a very decent man and he loves his wife. [Laughter] You know, he's good to his dog. [laughter] He's so well qualified." I said, well look, that's absolutely true and in most Supreme Court decis--, in the overwhelming number of Supreme Court decisions, that's enough. Good intellect, you read the statute, you look at the case law and most of the time, the law's pretty clear. Ninety-five percent of the time. Justice Ginsburg, Justice Thomas, Justice Scalia they're all gonna agree on the outcome.

But it's those five percent of the cases that really count. And in those five percent of the cases, what you've got to look at is — what is in the justice's heart.

So the Constitution is not about limiting gov't (including the courts) to enumerated powers? I agree that the courts can protect individual rights against democracy, but does Obama see some sort of natural law where those rights are not clear? When does he think we should or need to turn to the Constitutional amendment process?

I fail to see how Obama is saying anything wrong here. The Constitution has been (through substantive due process) used as the basis for many rights not textually present. In those limited areas where the law is contradictory, unclear or simply unexisting, the Supreme Court has broad discretion to set the guidelines for new law. This is nothing new. In that situation, why wouldn't you want someone "with a good heart" setting down that law?

I mean, you can rightly argue whether or not Roberts or Alito have good hearts, or who would qualify. But that's a different argument than what's being attacked here.

Isn't the basis for checks and balances, in part, because the politicians in the other two parts of the Federal Gov't are already operating based on what's in their hearts, and the courts need to be a tempering force against inflamed emotions?

I recall seeing plenty of AntonK posts denouncing Bush administration for subverting the constitution.
Is that right, AntoshKa ?

Tu quoque.

When the law isn't clear, the role of the judge should be to sort out the confusion and determine what the law actually says. Ambiguity in the law should never give judges free license to make up the law.

"Hmm, the law doesn't say whether you are supposed to file your appeal within 30 calendar days or 30 court days, so I declare that you, a member of a discrete insular minority group, are allowed to file your appeal within one year. This is particularly fair are just, because you are poor and kind afford a secretary to calendar things for you."

So, I'm curious: when Obama was lecturing in Constitutional Law at the University of Chicago, were I to take a class of his and write on the final exam "Justice X's opinion in Case Y was correct because Justice X's heart was in the right place", would Obama have given me an 'A'?

For a similar, but more in depth and probably more important, statement from Obama, see his September 22, 2005 remarks on the confirmation of Roberts.

Obama looked at Roberts' body of work and concluded that he sided with the strong versus the weak in that critical 5 percent of cases. Thus he voted against his confirmation, despite Roberts' assurance that he never cared for bullies.

He did provide something more concrete than just saying that Roberts was a meanie--Roberts was dismissive of efforts to eradicate racism, and concerns that things are tougher for a woman than a man. More concrete, but I'm still not exactly sure what types of cases Obama was talking about.

So, I'm curious: when Obama was lecturing in Constitutional Law at the University of Chicago, were I to take a class of his and write on the final exam "Justice X's opinion in Case Y was correct because Justice X's heart was in the right place", would Obama have given me an 'A'?

This reminds me of something I read that Alex Kozinksi said about the role of "emotion" in choosing a line of reasoning

There's better support and there's worse support. I think if you and I listed 10 possible arguments in a case, and ranked them from strongest to weakest, our rankings would be pretty much the same. I think it's my job to pick 1, 2 or 3, even if I don't like the outcome in 1, 2 or 3. I can't skip over them to pick number 9 to get the result I like.

To me the implication is clear: if the top 3 give significantly different outcomes he may choose the one that gives the outcome closest to what he wants.

This seems very close to Obama's reasoning. To me Obama is saying that in that 5% of cases where outcomes 1, 2, and 3 are not basically the same, he wants to see a judge on the bench who will pick the outcome Obama wants. Which is hardly a groundbreaking idea, nor is there anything wrong with it. The only thing making it unusual, in my opinion, is a greater recognition of the subtlety in the issue than I have heard the other candidates give.

"... you read the statute, you look at the case law and most of the time, the law's pretty clear."

So if the law is so clear then why is the case before SCOTUS? Doesn't a lack of agreement between and among lower courts indicate the law isn't clear? I wish BHO would give us some examples of clear law that went before the court.

The blather we hear from BHO, HRC and McCain is one indication that the US is a declining power. A strong nation with good leadership does not waste its time obsessing about the "powerless." Look at what's happening in the Asian economies. They are charging ahead while we obsess about identity group politics. It doesn't matter which one of these clowns gets elected because all they want to do is move the deck chairs.

I think abortion should be legal, but I'd say fetuses qualify as pretty "powerless" and locked out of political participation. And any judge who knows his public choice theory knows that for every piece of economic regulation there is some politically powerless group that is being harmed but is unable to overcome collective action problems to oppose it. Will Obama's ideal justice have room in her heart for them, too?

1. How do Sen. Obama's public comments square with his apparent private decision, cited in the NY Times, that he believed Chief Justice Roberts to be qualified and would have voted for him, but that the Senator nevertheless voted against him to avoid angering his political base? Am I missing something here?

2. Please, somebody, honestly, explain to me how, in Sen. Obama's words, the "powerless" are "locked out and prevented from fully participating in the democratic process." Provide an example of who the "powerless" are, and how they are "locked out" of the democratic process. *Not* how they "don't get their way" in the democratic process -- but how, rather, they are systematically "locked out" of the process and thus must turn to the courts.

The comments here are hinting at the problem with Obama's "theory". If there exist criteria that inform the Judge as to the appropriate group for the requisite empathy, just apply the criteria w/o the extra emotional step. For instance, if the the unborn satisfy those criteria then abortion should be banned. Adding an emotional component helps the theory not at all. If there are no such criteria then we no longer are talking about law, but power. I may end up voting for Obama, but it will certainly not be based upon his ability as a legal theorist.

Your skepticism certainly seems to be justified if you consider only opinions on the merits (on which Thomas and Ginsburg apparently agreed only 59% of the time last year), but this doesn't account for the selection bias by which contentious issues may be more likely to be granted certiorari.

It seems plausible to me that Thomas and Ginsburg agree with very high frequency when it comes to granting cert.

How do Sen. Obama's public comments square with his apparent private decision, cited in the NY Times, that he believed Chief Justice Roberts to be qualified and would have voted for him, but that the Senator nevertheless voted against him to avoid angering his political base? Am I missing something here?

Congratulations Terrivus!! A prize for you!!

You've uncovered the first case ever of a US Senator casting a vote on the basis of political expediency. Let's hope there's not another such scandalous act for another couple of centuries.

Despite all the hoopla over court appointments and the people making them, presidents by and large can only shift behavior of the courts in small increments over VERY long periods of time. Over the past 28 years, the republicans (either in the presidency or ham-stringing Clinton's choices in congress) have very slowly shifted the courts towards their desired behavior with results not always as intended. An Obama presidency, even one of eight years would likely only make a marginal shift in the other direction. While Obama would certainly make his mark on the courts, the doom &gloom hyperbole is overrated.

"... write on the final exam "Justice X's opinion in Case Y was correct because Justice X's heart was in the right place", would Obama have given me an 'A'?"

I think the answer is "yes." Anything can now happen on a college campus. For example,

I once wrote a term paper for a lit-crit course where I "deconstructed" the MTV program "Pimp My Ride." A typical passage: "Each episode is a text of inescapable complexity . . . Our received notions of what constitutes a ride are constantly subverted and undermined." It received an A.

Such is the sorry state of even our prestigious colleges. BHO is symptomatic of the whole mess.

While Obama would certainly make his mark on the courts, the doom &gloom hyperbole is overrated.

Perhaps you haven't noticed, but there is a gaping hole in the federal courts, and if there was a Democrat president and Democrat-majority congress (even a bare majority is enough to impose the nuclear option), the courts can be ruthlessly packed liberal, and the effects could last for a generation.

I guess that's not enough of an effect to warrant "hyberbole", in your mind?

Thanks for the withering sarcasm, "byomtov." Next time, can the rapier wit and instead try to grapple with the implied points of my question, which I will now make explicit for your benefit:

1. Sen. Obama has expressly campaigned on being "above partisanship" and the like. But his conduct in the Roberts situation, if true, is an example of precisely the opposite: voting on a major issue in a way that is not principled, solely to appeal to a political base. How is this above partisanship, when it appears to be the very definition of partisanship?

2. The fact that Sen. Obama supposedly DID think Roberts was qualified makes his public statements on the role of judges and the courts all the more confusing. If, in his heart of hearts, he thought Roberts was qualified and wanted to vote for him, how does that square with his public statements that suggest someone like Roberts *doesn't* fit with his vision of what a judge or Justice should be?

Also, "byomtov," as you were so eager to answer my first question, I'm waiting for to enlighten me as to the second. I'll be here all night; it's a hell of a research project I'm working on right now.

I'm not sure why, but there's very little consideration here for what the voters want, or to express it more blandly, that politicians have to take stands that will contribute to being reelected. If a majority of the voters of Illinois want Roe v Wade to stand, then their senators will have to oppose judges that are projected to tear it down.

I was going to made the same point in the prior thread when someone brought up entitlements. Democratic politicians were elected by people who wanted these programs. The voters wanted a Medicare drug plan so much that even the fatally stubborn Pres. Bush was forced to go along.

Obama's comments on these things as quoted here express the political reality. That they may also express his own preferences does not mitigate the pressure to represent his constituents.

BruceM is right on the merits though, isn't he? I'd asked for some clarification on that point earlier today in a related post. If 95% referred to lower courts, it might make sense, but it seems like a total dodge (most likely) or a disturbing conception of the Supreme Court.

I mean--he's a smart guy, right? Smart guys don't misunderstand these things, although they might make a soundbite and hope other people believe it. It's not completely unlike the "bitter" Pennsylvanians: the complaint wasn't about the word bitter, it was everything else. He's smart, and he knows these things.

If the voters really wanted a Medicare prescription drug plan so much that "even the fatally stubborn Pres. Bush was forced to go along" then the political branches can certainly enact it.

That is what the Legislature is there for, last I checked. It is not the place of the courts to say, "Hey, we think a prescription plan is a good idea, let's figure out where the Constitution requires one."

It's easy to heckle at Obama's statement if you view it as a serious effort to set forth his view of constitutional interpretation. But it's clearly not.

It's an effort by a politician to explain why picking Justices matters and to give non-lawyers a sense of what he looks for in judges.

When taken in that light, it's no better or worse than the typical nonsense spewed forth by politicians in connection to judicial nominations. The criticism here is unfair and silly. It's easy to mock any political statement about judging in a similar fashion.

I read "the courts essentially become the rubber stamps of the powerful in society" as a critique of the excessive deference to executive power some justices show. I would absolutely love a Supreme Court that was for enumerated powers, but this is a pipe dream. The closest we could get would be a court that flat-out hated the executive and congress, since they would do all that was possible to foil any policy plans that weren't so obviously required.

Didn't Madison write something in the Federalist Papers about the evil nature and jealousies of the branches slowing each other down and thus preserving liberty?

why does heart, for the left, always seem to boil down to unlimited abortion? abortion, something not mentioned in the Constitution, seems to have become the highest possible value and civil right to the left.

why does heart, for the left, always seem to boil down to unlimited abortion? abortion, something not mentioned in the Constitution, seems to have become the highest possible value and civil right to the left.

If you remove all the hyperbole, is there a non-rhetorical question you'd like to ask?

Does Obama not see the irony that the #1 decision that his liberal base wants his Justices to uphold was a decision taht did exactly what he criticizes Roberts and Alito for?

It's the liberals on the court, the Ginsburgs, Bryers and Souters that Obama openly admires and praises that have prevenizens from fully participating in the democratic process. It's the liberal justices who locked the door and hold the key in their hands.

All overturning Roe v Wade would do would be to open up the door, to allow the full participation of the political process. All of Obama's liberal friends in CA, NY, IL, and elsewhere would still be able to get abortions to their hearts content.

But Obama wants to look at a Justice's heart. The same heart that says the US Constitution guarantees the right of a woman to pay someone to stick a forceps inside of her and and vacuum out the brains of her 5 month old baby. The "machinery of death" as Blackmun once called itin another context.

Obama is a fraud. He said he didn't want to comment on Heller because it was a "pending case". Never mind that when he was asked about it in the April 16 debate, the case had been submitted more than a month prior and had already been decided. He didn't seem to mind commenting on a pending case when he submitted an amicus brief in Crawford, though. Then, he was just find with not only commenting, but actively trying to influence the decision.

Then he said he views the 2nd amendment much like the 5th and that govt regualtions on gins should have the same standard as they do in eminent domain, which is virtually no standard at all.

Just because the law is clear doesn't mean everybody likes it. And it's well known that if the judiciary shares your dislike for a law, you've got a good shot at the clear meaning of it not standing if you can get them a crack at it.

So, I'm curious: when Obama was lecturing in Constitutional Law at the University of Chicago, were I to take a class of his and write on the final exam "Justice X's opinion in Case Y was correct because Justice X's heart was in the right place", would Obama have given me an 'A'?

DangerMouse:

LOL. That basically sums up his theory of jurisprudence.

A. Zarkov,

[...] I think the answer is "yes." Anything can now happen on a college campus. [...]

Such is the sorry state of even our prestigious colleges. BHO is symptomatic of the whole mess.

I'd bet the answer is "no." The logical leaps, above, are symptomatic of what's wrong with comment thread analysis.

I have a problem with the idea that law, or any other political process, can do anything other than side with the "powerful." Seems to me if the government is on A's side against B, then A is more powerful than B.

At best all one can do is try to arrange it so that those who act in the overall long-term social interest are more powerful than those who act against it. I think our intuitions about fairness do a pretty good job of this, but that's just me.

Every candidate (and every good trial lawyer) tries to pitch "I (or my client) am just like you, and the other side is one of 'them.'" It is BS, but it is effective BS.

Orin: is "crap" a really offensive word? It's just a word I use a lot ("asinine" is another word I frequently use). If you tell me it's too offensive for this website, I'll cease to use it (or try my best, anyway). But if you're just trying to imply that I'm immature with a limited vocabulary, that's fine, point made (though I disagree).

[OK Comments: BruceM, the standard here is civility, and no, I don't think the word "crap" is civil. As you are at attorney yourself, perhaps it might work to think of the standard as being what you might say to a judge in court or what you might write in a brief. I assume you would not write in a brief that your opponent's argument is "total crap." Also, I assume you would not tell a judge that he is "full of crap." I apologize if you feel that it would really cramp your style not to use the word "crap" or "asinine" in blog comments, but yes, I do think the word is inappropriate.]

Regarding Scalia vs. Ginsburg, others cleared up or explained what I said well enough so I don't have anything to add.

Since they are on the SCOTUS, I imagine they get a disproportionate percentage of the 'hard cases'. I'm sure they would agree on more than 95% of the Federal cases filed but those tend not to get cert since the lower court was bound by precedent.

I have a problem with the idea that law, or any other political process, can do anything other than side with the "powerful." Seems to me if the government is on A's side against B, then A is more powerful than B.

Consider S1938 of the US Code, as applied to situations where local/state police violate settled Constitutional law. Certainly it has not eroded the power of the local and state police that much, but it certainly has given the victims (when that power is misused) an avenue for recourse (while hopefully not interfering with the power when it is used correctly).

Congress judged that State police were too unencumbered and taking a rather loose view of their responsibilities. They limited that power. I don't think you can argue that now local police are powerless.

Simple question: do you guys believe that the various States have the power to materially interfere with parents' decisions in raising/schooling their children (aka, Pierce v. Society of Sisters) or does the Constitution forbid that. If so, you have some interesting explaining to do since raising your chill'uns is not an enumerated right.

We all want the 9A/14A/substantive due process/etc to cover the rights we hold dear and to hell with the rest of them. This is a recipe for chaos.

Also, it disheartens me to have to swallow Obama's rampant bullshit regarding the 2A. All told, however, it balances out with McCain's desire to overrule Lawrence so it's a wash.

"Judge, the law isn't clear. You see, the meaning of 'is' isn't necessarily clear. The hermaneutics of the societal metanarrative have to be deconstructed in the context of pre-existing power dynamics. Therefore, in this particular statute as applied to these particular facts, 'is' really means 'was.'"

Of course, this is just a cartoon version. In real life you have to expand this sentence into 10 or 20 pages, dress it up with lots of footnotes and string citations and, if you're arguing to the Oregon Supreme Court, throw in a bunch of dubious history and early 18th century Indiana law. Other courts have their own favorite nonsense. If you can dance fast enough, the judge's eyes will glaze over and the Court will go wih its "gut feeling."

To some degree this is inevitable, but the key to good judging is: (1) be smarter than the lawyers, so you can figure out when they are feeding you BS; and 2) try really hard to follow the argument and figure out whether it is right, instead of giving up and going with your "gut" the first time you get a little confused.

The problem with declaring that there is a 5% of cases that are "too hard" to judge is that it makes it too easy to go with your gut, instead of trying to sort through a difficult argument.

Yes OrinKerr, he may be a Senator from Illinois, but he's sommuch more than that. He's one who believes what, that the 1st Amendment can be "...interpreted in so many ways."? Is that your view of the Constitution, "Professor" Kerr?

""And in those five percent of the cases, what you've got to look at is — what is in the justice's heart."

It sure is easy to mock such sentiments -- afterall, we are all hardball realists, aren't we?

And yet, Sandra Day O'Connor has written that she considered Thurgood Marshall an important mentor for her, and after he died, his spirit continued to guide her in her opinions.

His advice to her was that you have to consider the impact of your decisions upon people, and not just think about the abstract concepts of law. Perhaps this requires 'looking into your heart' but it is hardly a bad thing for a judge to consider this.

And what exactly has Obama said that is so wrong? Don't we all agree that a president has the right to appoint whomever to the Supreme Court? Just as McCaun would have the same right? Is there anyone who doubts that McCain has said he would put all conservatives on the court?

I guess it's only okay to put conservatives on the court, but not liberals.

PDX Lawyer: " Seems to me if the government is on A's side against B, then A is more powerful than B." Yup. So when the government wants to throw two men in jail for having sex, the powerless ones are the gay men, as in Lawrence v. Texas. Considering the fact that a majority of Americans have no problem with the result of Lawrence, I'd say that Obama's comment is consistent with a majority of Americans.

What concerns me about Obama's remarks is the implication that voices like Roberts or Alito don't belong on the court. He opposed Roberts despite Roberts being a mild-conservative appointed in trade for another mild-conservative (SOC). He opposed Alito despite Alito being a conservative appointed in trade for another conservative (WHR).

Obama lends the perception that he wants to silence certain interpretations of the constitution. Moreover he says without apparent irony that he intends to be the President of the powerless, appointing Justices favorable to them. So much for those people being powerless and locked out of the process.

People of Obama's ilk seem to treat the opposition as if they don't have a smidgen of a valid point on their side--as if a conservative, careful, and cautious approach isn't often warranted.

And what exactly has Obama said that is so wrong? Don't we all agree that a president has the right to appoint whomever to the Supreme Court? Just as McCaun would have the same right? Is there anyone who doubts that McCain has said he would put all conservatives on the court?

Apparently Obama does not believe these things. He opposed both of Bush's appointments.

Oh, and since Obama had one of his key foreign policy advisors engage in regular discussions with Hamas, it would seem that he believes that not only can the US Constitution be "...interpreted in so many ways," but so can the Hamas Charter. Neat how that 'interpret it as the wind blows' thing goes, eh?

"I'd rather be a part of a good nation with a sense of decency than a "strong" nation that views some of its citizens as expendable parts."

I am not sure how we get from non-obsession to making people "expendable." Being non-obsessed is not the same as being unconcerned, and does not imply a desire to commit mass murder.
"I'm pretty sure Jesus wasted his time obsessing about the powerless."

Your explanation doesn't satisfy me. If section 1983 gives me the practical ability to avoid having a policeman bash me over the head for no particular reason except that he wants to, then I'm all for it.

My point is that in that situation, if the alternatives are that I am bashed or I am not bashed, *I* have the power, because I am getting what I want and the policeman is not. I think that's a good result. Some policemen disagree. The fact that the Congress and the courts (and most policemen) side with me indicates that in this particular situation I have more political power than the policemen who disagree with me.

It is coherent to argue that a particular outcome in a particular case is good or bad. But it is incoherent to argue that whichever side wins should, for that reason, be the loser.

Of course you can argue that some group (people of color, citizens interacting with police, or whomever) are *by definition* "powerless." But if you then set up a situation where "powerless" people get the outcomes they want, and "powerful" people get outcomes they don't want you've inverted the ordinary meaning of these words (and coincidentaly won the Naom Chomsky Political Linguistics Award).

Do you think law schools are immune from PC grading? Or do you think somehow BHO rises above it all?

Immune? I wouldn't go that far, though I saw no evidence of it when I was in law school.* But even assuming that sort of thing does happen, suggesting Obama would give an "A" to an answer consisting of "Justice X's opinion in Case Y was correct because Justice X's heart was in the right place" distorts and trivializes his judicial philosophy and maligns his competence and integrity as a teacher. The former is evident from any fair reading of the statement quoted in Orin's post. And the latter should be obvious by now to everyone who's waited in vein for some kind of smoking gun that will expose Obama as just another disingenuous, unfair, intolerantly partisan, PC nitwit. That vigil continues.

In fact, DB had a post here just a few days ago, implicitly inviting anyone who ever had a gripe with Obama the teacher to air it. The silence was deafening. On the contrary, the reports on that thread confirmed all the previous reports that Obama is very competent, balanced and fair.

[*Admittedly, it was 20 years ago, but the partisan climate wasn't very different, and my school was one of the first you'd think of as PC.]

When Roberts came up and everybody was saying, "You know, he's very smart and he's seems a very decent man and he loves his wife. [Laughter] You know, he's good to his dog. [laughter] He's so well qualified."

It's kind of ironic that this is what everyone is saying about Obama...except for the part about his being "well qualified".

President Bush claimed to be able to look into President Putin's soul, which didn't work out too well. Senator Obama seems to think that he can look into a person's heart, which didn't work out too well in the case of his own pastor. Why should we believe that Senator Obama would be any better at reading a potential justice's heart? Is it because he's the Anointed One?

"So when the government wants to throw two men in jail for having sex, the powerless ones are the gay men, as in Lawrence v. Texas. Considering the fact that a majority of Americans have no problem with the result of Lawrence, I'd say that Obama's comment is consistent with a majority of Americans."

You're right of course, but for the fact that the Supreme Court is part of the government. We have three groups: (A) gay men in Texas who have sex with each other; (B) others who want gay men in Texas to be able to have sex with each other; and (C) others who want gay men in Texas who have sex with each other to go to jail. Pre-Lawrence, (C) had more political power than (A) and (B) combined. This was the result of Texas electoral districting, the dynamics of interest group voting, evolving standards of sexual morality, what a bunch of long-dead white guys once declared to the "The Constitution," who various Presidents nominated to the Supreme Court, and a lot of other considerations which, taken together, make up politics.

Now, post-Lawrence, (A) and (B) together have more political power than (C). I understand that you think (C) should lose, because (C) is wrong. Maybe you're right. My point is that the fact that (C) *does* lose, post-Lawrence, makes it nonsensical to claim that (C) is more "Powerful" post-Lawrence.

Obama also has rather curious ideas on foreign policy. Apparently when, after years of dialog, armed thugs take over a country the solution should not be to throw them out by force but -- let's try this again -- more dialog!

Oh, and since Obama had one of his key foreign policy advisors engage in regular discussions with Hamas, it would seem that he believes that not only can the US Constitution be "...interpreted in so many ways," but so can the Hamas Charter. Neat how that 'interpret it as the wind blows' thing goes, eh?

What strange brand of logic bridges the chasm between Obama cutting all ties with an informal adviser who talked to Hamas, and Obama believing anything about the Hamas Charter?

AntonK demonstrates his anti-intellectual hackery once again.
Mr Malley was acting on behalf of a well respected conflict resolution NGO. Isn't it strange that two thirds of Israeli's support negotiations with Hamas, but it is a completely taboo subject in the U.S.
And yet, Obama fired him...

Laura:
Obama lends the perception that he wants to silence certain interpretations of the constitution.

Isn't it just a part of the process, though? Not being able to nominate every single person to the Supreme Court (since you don't need to be a lawyer) necessarily acts to "silence certain interpretations."

People of Obama's ilk seem to treat the opposition as if they don't have a smidgen of a valid point on their side--as if a conservative, careful, and cautious approach isn't often warranted.

Obama also has rather curious ideas on foreign policy. Apparently when, after years of dialog, armed thugs take over a country the solution should not be to throw them out by force but -- let's try this again -- more dialog!

George Bush has rather curious ideas on foreign policy. Apparently when armed thugs take over a country, it's America's responsibility to invade and occupy it until some sort of spontaneous outbreak of democracy. The Republican party used to reject that sort of Wilsonian nation building, but now that they've followed Bush over a cliff on the issue, they're all set to pay the price come November.

I'm sorry to hear that. And if your daughter's experience is common nowadays, I'm sorrier still, and I stand corrected. Though that would only make Obama's apparent fair-mindedness all the more exceptional.

Isn't it just a part of the process, though? Not being able to nominate every single person to the Supreme Court (since you don't need to be a lawyer) necessarily acts to "silence certain interpretations."

You just constructed a straw-man. Please go back and reread and rethink what the phrase 'certain interpretations' could mean. Obama lends the impression of wanting to silence particular interpretations held strongly by ~30% and at least entertained by another 30 percent of the population. He lends the impression that these people deserve no proportionate voice on the court by voting against the nominees that would give them no more than their proportionate share.

Kind of like those who use the word "ilk."

Now isn't that mean-spirited... and even after I make a point of distinguishing between his actual intentions and the impression of his words.

People of Obama's ilk seem to treat the opposition as if they don't have a smidgen of a valid point on their side--as if a conservative, careful, and cautious approach isn't often warranted.

From which Obama statement do you extract that?

Lets pick the one immediately at-hand. Obama believes that in the "5% of the cases [that there isn't consensus]", conservatives come up short because what's in their heart is lacking.

First, I don't read "And in those five percent of the cases, what you've got to look at is — what is in the justice's heart" as saying "what's in their heart is lacking." That's one plausible reading. But it's just as likely he's saying that what's in their heart is different than what he's looking for, not that it's inherently deficient.

But granting your reading for the sake of argument, how does it even remotely equate to conservatives not "hav[ing] a smidgen of a valid point on their side"? When did even a complete lack of compassion, if that's how you're reading Obama's statement, become equivalent to an absence of all validity, Constitutional, logical, practical, philosophical or otherwise? Isn't that just a bit of a stretch? And of course by "bit of a" I mean "huge."

I'm less offended by the constitutional issue then the basic philosphy of law issue. O'Bama (sorry couldn't resist Irishing it up) is saying not that all should be equal before the law, but that all should be equalized by the law. This is a pretty radical departure from longstanding US legal tradition, and I doubt he has really considered the implications of such a change.

But granting your reading for the sake of argument, how does it even remotely equate to conservatives not "hav[ing] a smidgen of a valid point on their side"? When did even a complete lack of compassion, if that's how you're reading Obama's statement, become equivalent to an absence of all validity, Constitutional, logical, practical, philosophical or otherwise? Isn't that just a bit of a stretch? And of course by "bit of a" I mean "huge."

Because 'conservative' Justices write opinions explaining their logic. If Obama thought the reasoning was warranted he wouldn't object to those Justices being on the court--he'd respect them for being counterbalances and contrary voices in conference. Instead he proffers a theory about character deficiency. In my view to get to assuming 'character deficiency' you need or ought to have gotten through a whole lot of less personal reasons. Or in the words of the famous phrase, "don't attribute to malice that which can be attributed to incompetence".

Because 'conservative' Justices write opinions explaining their logic. If Obama thought the reasoning was warranted he wouldn't object to those Justices being on the court--he'd respect them for being counterbalances and contrary voices in conference. Instead he proffers a theory about character deficiency. In my view to get to assuming 'character deficiency' you need or ought to have gotten through a whole lot of less personal reasons. Or in the words of the famous phrase, "don't attribute to malice that which can be attributed to incompetence".

Even if I granted all the hooks and bands you've fastened together for your bootstrap, and I don't, they still don't get you to Obama rejecting the validity of the conservative point of view in toto. Where have you made that argument?

Even if I granted all the hooks and bands you've fastened together for your bootstrap, and I don't, they still don't get you to Obama rejecting the validity of the conservative point of view in toto. Where have you made that argument?

I *infer it* from his implication of character deficiency. If you go back to my original post, you'll see that I remarked that his words "lend the perception" and "seem to". Both are comments which deal with interpretation of his statements rather than with his outright declarations.

You're trying to maneuver me into defending a stronger statement than I was making. Again, Obama's choice was to focus on the character of the Justices rather than the substance of their arguments.

You should bear in mind that implying conservatives are heartless is an old canard using to denigrate conservative positions by means of ad hominem attack and circumvent substantive argument.

When Obama says he wants justices with "hearts" he only means bleeding hearts, as in bleeding heart liberals. The clear implication of what he means is that if you're not deciding all of your cases in such a way that produces favorable outcomes for the minorities of the month, then you have no heart. This definition rules out qualified jurists who faithfully rule on the text of the constitution and statutes and precedents regardless of whether or not his/her personal preference prevails.

This fundamental belief system is what differentiates judicial liberals and conservatives. Liberals wish to use the courts to hand out "justice" to their favored constituencies, whereas true conservatives believe that the only correct decisions made by courts are the ones in which the laws are interpreted fairly according to their text without regard to which party prevails.

In other words, Obama believes it is the role of a justice to disregard the law if that law disfavors some sort of minority (that's what he means when he says "powerless" even though he doesn't say WHY they're powerless.) Any such nominee should not be considered for a judicial post and would be blatantly abandoning the objectivity required to be a judge.

For having that view of the courts, the nominee would be unqualified, just as the person doing the nominating would be unqualified - for the same reason.

So, Randy, as to your comment about SDO - NO, it isn't the job of justices to look into their hearts in rendering decisions. What arrogance to think that the answer to these legal questions resides there!

Regardless of how a case goes, one side is going to lose, so thinking about how the decision "affects people" is not a helpful guideline (plus, in the federal courts, its cases and controversies between litigants, not political factions.) How many lives have been ruined because the court ruled that states couldn't ban abortion? I bet she doesn't consider that, but then again, she wasn't qualified to consider that question, and that wasn't the issue when she was supposed to be ruling on what the text of the Constitution actually says about privacy and abortion...which is NOTHING.

One thing that rings kind of hollow about Obama's explanation is that when you consider his background, it makes his statement completely nonsensical. When you think it through, you realize Obama is deliberately avoiding saying anything at all.

Obama is a Senator who went to Harvard Law. At some point after graduating law school, he taught what appears to be a 14th amendment course at Chicago. Obama seems to have more than a passing familiarity with basic legal concepts and especially constitutional appellate law. I knew before the end of my first legal writing class what sort of cases a Supreme Court justice heard. I don't think any first year law student (let alone a law professor) thinks that supreme court justices decide cases where 95 percent of them are "easy calls." That is the sort of thing a trial court does. And Obama has to know this. In excruciating detail.

Knowing that there is no way in the universe that Obama doesn't know this tells us that:
1) Obama knows exactly what sort of judges he will be nominating. He knows exactly what sort of judicial philosophy he wants and exactly what sort of decisions he wants. He cannot feign ignorance because this is something he has focused on for a significant portion of the past 20 years.
2) He probably isn't going into details because he knows that having a public discussion about his "ideal judge" will scare a lot of people. In the face of vagueness, most people hear what they want to.
....And most significantly....
3) When Obama talks about using judges as a "refuge of the powerless" and a way of representing the interests of those "locked out of the democratic process", he really means using the supreme court to implement policy that couldn't survive a vote in Congress. Who is more powerless than those with unpopular or discredited opinions?

Most groups that are "locked out of the democratic process" are locked out because their views are batshit insane- they scare the voting public! There is no better way to become powerless than to scare the electorate. Sometimes this apprehension is uncalled far, but often it isn't. Unless there is a clear cut violation of someone's rights or an overstepping of governmental authority, I think the court has an obligation to defer to the democratic process. The way to change public policy is to convince the public to change their minds, not dictate a new public opinion from the supreme court docket.

Haven't we learned from Roe v Wade that this sort of social engineering backfires more often than not?

When Obama talks about using judges as a "refuge of the powerless" and a way of representing the interests of those "locked out of the democratic process", he really means using the supreme court to implement policy that couldn't survive a vote in Congress.

Yeah, cause it's not as if the Republicans would ever go to Court to try to thwart the will of Congress *cough* McCain-Feingold *cough*.

What arrogance to think that the answer to these legal questions resides there!

It is, however, equally clueless to think the answer invariably lies in some magical book of original intent that you just have to open to find the answer to every problem of constitutional or statutory interpretation.

I think the part in his remarks about most (95%) of cases being "easy" is trying to simplify matters for the sake of laypeople. Obviously this explanation won't work for lawyers. Also, the President nominates judges for the lower federal courts as well, and in those cases, most cases are indeed "easy" (to the extent that they are not issues of first impression).

I understand you to be saying you infer from the quoted statement that Obama ascribes some character flaw to conservative judges. From that you infer he "treat[s] the opposition as if they don't have a smidgen of a valid point on their side--as if a conservative, careful, and cautious approach isn't often warranted." If that misconstrues your position, please let me know. And if you think I tried to get you to defend a different position, please let me know that too, since what I just said is all I intended to challenge. So let me try again:

I don't think it's a fair inference from Obama's scrutiny of a nominee's heart that he considers the nominees he rejects characterologically flawed. We can safely assume he doesn't find what he's looking for. But to turn that into a judgment of personal defects when there are many other equally plausible readings violates your own precept against assigning character deficiencies casually.

Why does looking for a certain kind of heart in a judge imply that any other kind is inferior for non-judicial purposes? I share Obamas's judicial philosophy and preferences, and I have conservative friends I'd dread seeing on the bench for those reasons. But those friends are some of the best people I know. To be clear, I consider what's in their hearts incompatible with my notion of what makes a good judge, but not at all with what makes a good person. It seems perfectly natural to me that Obama would have the same thing in mind.

This benign reading of Obama's intentions is borne out by the anecdotal reports of people who have known and worked with him, e.g., his conservative co-editors on the HLR, and his former students. The bottom line is that there are lots of ways to interpret what he said other than the one you chose, which happens to be the most damning interpretation. As far as I can see, there's no logical reason to prefer it, but good reasons to doubt it.

As for whether the purported implication that Obama ascribes character flaws to conservative judges further implies he "treats the opposition as if they don't have a smidgen of a valid point on their side--as if a conservative, careful, and cautious approach isn't often warranted," I just don't see how that makes any sense at all. For that to be true, every conservative argument would not only have to be mutually exclusive with some opposing liberal one that Obama would prefer in every single instance, but it would also require Obama reject all the conservative arguments as morally, politically, intellectually, philosophically, aesthetically, astrologically and grammatically worthless. There's no logical reason this follows from your reading of his statement, and again it conflicts with the anecdotal reports of his respectful airing of opposing views.

The ultimate disparity. in the balance. of power occurs between government action and those citizens subject to it. If Obama is favoring judges and justices who would side with the powerless in, say, Heller, then I applaud his stance.

There is a real danger with this approach. Essentially, under this idea, there is no real rule of law. People need be able to operate in society with the knowledge that they reasonably understand the law. If laws can be applied in any way, at any time, based on the whims of some judge or panel of judges, then how can we move about in society unafraid? How can we interact and operate with some level of confidence that we understand the law and that it will be applied in an evenhanded manner? This will be like the old days where people were at the mercy of the whims of the King!

When Obama talks about using judges as a "refuge of the powerless" and a way of representing the interests of those "locked out of the democratic process", he really means using the supreme court to implement policy that couldn't survive a vote in Congress.

Yeah, cause it's not as if the Republicans would ever go to Court to try to thwart the will of Congress *cough* McCain-Feingold *cough*.

1) It wasn't republicans that challenged McCain Feingold, it was various groups that resented having their right to engage in political speech for 2 months before an election. Interest groups of every political persuasion opposed McCain-Feingold.

2) As I pointed out, I have no problem with the supreme court intervening when people's rights really are being infringed upon or when congress really is overstepping its bounds. I have a problem with the supreme court creating new constitutional rights and new governmental powers that would require Article V if it was anyone but the court doing the changing.

3) And to foreclose a likely question- no, I have nothing against the constitution protecting a woman's right to get an abortion as a policy issue, I just think that the constitution doesn't do that. Until you can get a supermajority of states and congress to amend it, the right to an abortion will remain unprotected by the constitution.

Reproductive health issues have been the domain of the states since they were colonies. It's part of the general police power that states have and the federal government does not.

Right guys -- we definitely don't want to consider whether a nominee's "heart" is in the right place. Which is why when conservatives advocate for their nominee, they never make representations about whether their nominee is a "good man" or has "good character."

As I pointed out, I have no problem with the supreme court intervening when people's rights really are being infringed upon or when congress really is overstepping its bounds. I have a problem with the supreme court creating new constitutional rights and new governmental powers that would require Article V if it was anyone but the court doing the changing.

The problem is, everyone agrees with you on that point, but there is plenty of disagreement among people about the line between "really being infringed / really overstepping" and "creating new constitutional rights."

A nice quip, but in fact, yea - because "bleeding heart" denotes and connotes ideological interests far more than it reflects personally committed to interests.

And yea, a bleeding heart leftist, when it comes to the Supremes, should in fact be a deal killer. Contrary to ideologically vested dogmas, to eschew bleeding heart rationalizations, at the level of the Supreme Court, has nothing to do with eschewing humane and probative sympathies within the context of specific cases heard before the court. And that's nothing, literally understood.

And there's no indication Mr. Obama, who eschewed both John Roberts and Samuel Alito, is a Burkean.

Laura: "People of Obama's ilk seem to treat the opposition as if they don't have a smidgen of a valid point on their side--as if a conservative, careful, and cautious approach isn't often warranted."

It's really pretty funny. Conservatives have been complaining for years that liberal judges have no business being on any court, that liberals have lead the country to ruin, and complained ad infinitum about decisions in which so-called liberals held the majority.

Then comes Obama, and he merely suggests conservative judges don't look into their heart, and this is all out of bounds! He even opposed conservative judges, which I now learn is out of bounds as well.

Look, what ever you Obama said, it's pretty damn mild compared with what most conservatives have said about liberals. Look at the comments on this thead!

If conservatives can oppose liberal judges, then don't be surprised when liberals oppose conservative judges. If conservatives can make fun do liberal judges and say they have no place on the court, then liberals can say the same things as well.

Brown v. Board of Education. Now THERE is liberalism run amok. Precedent clearly stated that separate but equal is the law of the land.

BUT -- the facts were that although the schools were separate, they were far from equal. Even where they were equal, by claiming that the races had to separate, it gave black kids a 'badge of inferiority', that they were not good enough to study next to a white kid.

None of this has to do with law, yet the judges considered it as a basis for their decision. Furthermore, they had to 'look into their hearts' and realize that separate but equal was a result of nothing more than racism. They ordered separate educational systems to be dismantled, another (horror upon horrors) liberal decision. They had to look at how the current system impacted upon people, and how it could be changed for the better.

I realize some of you dislike Brown because it's a liberal decision. Yet, our country is much better for it, and there is hardly a person alive now who would say that it should be reversed.

I actually dislike stare decisis a great deal, at least in constitutional law. All too often it is just a mechanism for perpetuating the gross errors of a previous Court.

For example:
The Slaughterhouse Cases gutted the 14th amendment. Later courts could have revisited the matter and said "the Court was wrong, privileges and immunities means the privileges and immunities listed in Scott v Sanford" or something to that effect. Instead we got a clumsy doctrine of Substantive Due Process via incorporation, which is a fundamentally illogical concept and not surprisingly, without basis in the constitution. The end result is constitutional jurisprudence that has only the most tenuous link to the actual constitution.

The notion of a constantly evolving common law made of piled up layers of precedent DOESN'T WORK when you are dealing with the constitution. It doesn't work because the constitution is supposed to constrain all 3 branches of government, including the judiciary. If the supreme court is free to build upon its own errors ad infinitum, then it isn't constrained by the constitution anymore. This is the root of the problem with the living constitution crowd. They beleive that the constitution is just another starting point to make interesting common law, a kind of super-statute.

Yes OrinKerr, he may be a Senator from Illinois, but he's sommuch more than that. He's one who believes what, that the 1st Amendment can be "...interpreted in so many ways."? Is that your view of the Constitution, "Professor" Kerr?

AntonK, yes, it is.

Take campaign finance reform. Some Justices take a "living, breathing" approach to the First Amendment in which they hypothesize that it should strictly regulate campaign finance, even though there is no evidence that this was within the original public meaning of the First Amendment. Others take a judicial restraint approach, consistent with originalism, that it does not regulate campaign finance nearly so strictly. I think both are possible readings of the Constitution, depending on whether you are more persuaded by the "living, breathing" approach or the judicial restraint approach. Of course, I recognize that some might find one of these approaches much more personally persuasive -- often, I suspect, for reasons relating to a person's own personal policy preferences. But stepping back, I think it's fair to say that these are two different ways of interpreting the First Amendment.

Finally, you might want to watch your " key -- it seems to be sticking in strange ways.

I find the quoted Obama statement very significant and here's why. There are two ways of looking at what he said. First, it could be taken at face value, ie, that he thinks that cases should be decided by what's in a judge's heart and that he will appoint judges based on whether he likes what is in their hearts. Second, it could be viewed as a way of explaining to non-lawyers something that is much more complicated but amounts to this—there is no objective, "non-activist" way of deciding the hard cases, and therefore those cases must be decided by a judge's moral/political philosophy. The first implies that all judging ought to be essentially political, but that 95% of cases are non-controversial (just like most bills coming out of the Senate are passed by unanimous consent) because there is a political consensus as to how they should be decided. The second implies that there is an objective way of deciding most cases, but that there is a necessarily a residual number of cases (the five percent that "really count") which have to be decided on a moral/political basis.

Now lets look at the statement from the standpoint of the general public. To the extent that one has high degree of confidence that Obama will pick judges with moral and political values that mirror one's own, and who will therefore decide controversial issues (abortion, gun rights, gay marriage, affirmative action, to name a few) the "right way," there may be little cause for concern. But there are presumably many voters (specifically, many swing voters) who do not fall into this category. Those voters have good reason to be worried about the implications of Obama's statement.

During the Clinton Administration, there was an attempt to mollify these voters by presenting the choice as one between moderate judges who would "follow the law" and conservative judges who would be guided by ideology. The explicit or implicit message was that Justices like Ginsberg and Breyer would not be deciding cases based on personal moral/political views, while Justices like Scalia and Thomas would be. This provided a reassurance to voters based on both legitimacy (voters tend to think that judges should be doing something technical like applying the law, not deciding cases based on personal philosophy), and outcomes (socially conservative voters had less reason to be concerned that Clinton's appointments would render Warren Court type decisions that would upset settled expectations).

Obama's statement, however, makes a starkly different claim—namely that the choice is between judges with good hearts and those with bad (or maybe just empty) hearts. Again, if one is comfortable that Obama's definition of a "good heart" is the right one, perhaps there is no problem. For those voters who may suspect that Obama might find their own hearts wanting (or bitter), there is. Not to mention the question of whether voters will trust Obama to pick people with good hearts (ala Perseus's reference to Reverend Wright).

Obama's statement also contrasts sharply with McCain's speech on judicial appointments. McCain emphasized the ideal of non-political judges who apply the law and don't make it. Even more, he maintained that judges should exercise restraint and defer to the political branches on fundamental questions of social policy. Within this framework, he argued that qualified judges should be confirmed, and specifically pointed to his own votes in support of the confirmation of Ginsberg and Breyer. In contrast, he quoted Obama's explanation for voting against Roberts on the grounds one should only support a nominee who shares "one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy."

The legitimacy of the judicial system depends on the public's belief that judges are doing (or are supposed to be doing) something other than imposing their own political philosophy, and that they are qualified to do it for reasons other than being morally superior to the common folk. Even people who are inclined to support Obama for other reasons may have second thoughts if they consider the prospect of electing a largely unknown quantity, with a heavily Democratic Congress that is unlikely to challenge him, and an agenda that includes using the federal judiciary as a force multiplier to project his "deepest values."

"...Some Justices take a "living, breathing" approach to the First Amendment in which they hypothesize that it should strictly regulate campaign finance, even though there is no evidence that this was within the original public meaning of the First Amendment."

And therein lies the problem for me. "Some justices...." I would rather my elected representatives take the "living, breathing" approach to our laws, and not justices. Let the justices decide whether the fruit of our representatives' "living, breathing" approach to our laws comports with the original meaning given the Constitution and other founding documents.

Listen, I'm fighting an uneven battle here: I'm neither a lawyer nor law professor. I fully realize that there's a depth and breadth of complexity to these issues that I do not fully grasp (yeah, yeah, hold the jokes). But I do know, and it's clear that many others do as well, that I don't want judges deciding whether the 1st Amendment, 2nd, or any other piece of the Constitution is ready for the garbage or not. And yes, the Constitution can be 'lived,and breathed' into nothingness...

ps. Sorry for being rude earlier. I got hotter under the collar than I should have...

"one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy." BHO

Wow. I do believe he's the one man who could sell the Brooklyn Bridge to a sizeable number of Americans. I can see Obama now, cast to replace the empath on the Star Ship Enterprise. He feels, and how he feels, our pain. Not only that, he can heal our souls, always a valuable talent and trait for a politician to be able to list on their CV, no doubt.

Obama leaves a great deal unclear. What are the chances that's an accident?

Very little. Obama is vague on purpose. He says "hope, change, fairness, justice" and wants us to write on that what we want to see. If he gets too specific, we will start to say, "hey, not THAT change!" A lot of people are going to feel disappointed after a year to two of the Obama reality. You will have only yourselves to blame.

I don't think it's a fair inference from Obama's scrutiny of a nominee's heart that he considers the nominees he rejects characterologically flawed. We can safely assume he doesn't find what he's looking for. But to turn that into a judgment of personal defects when there are many other equally plausible readings violates your own precept against assigning character deficiencies casually.

No he doesn't consider them categorically flawed, he grants that they are smart, educated, etc--just as say RBG. But he says that in five percent of the cases, they reach a different conclusion than RBG. He suggests that the reason for the difference is 'in the heart'. We ought to be able to agree that 'in the heart' refers to an attribute of someone's character, no?

Again: he observes a difference: different outcomes in certain cases. He then ascribes an explanation for the difference: a difference in what's in the heart. By doing so he suggests that there isn't another, better reason (suggests by exclusion) namely that there could be logic and reason in opposition. i.e., he suggests Roberts, Alito, and Scalia are unfit by means of their character.

Can't conservatives feel for powerless petitioners and simultaneously recognize structural harm in acceding to their position?

Listening to his remarks, he conveys a sense that the answer is "NO". This is a consequence of his using certain historically loaded ideas such as refering to conservative jurisprudence as hostile to the powerless or lacking heart. His use of these turns of phrase are one reason he is so loved by people who demonize Republicans and conservatives.

1) Anyone denying that there are hard cases, where the controlling law and precedent are essentially indeterminate of a proper outcome, is out of touch with the reality of our judicial system;

2) The rest of us understand that those cases come along, and our judges have to do something with them -- it's their duty to decide the case before them

3) Much of the disagreement here is merely over which general and abstract terms sound best to our ears as a description of good judging in hard cases -- some prefer "follow the law as it's written" or "don't legislate from the bench," and some prefer "side with the powerless against the powerful," or whatever. To get riled because Obama prefers the latter, because it means he will appoint philosopher-kings, is inflated and abstract. THIS ELUCIDATES LITTLE OR NOTHING.

4) To divine from Obama's comments here that he will choose judges who will rule, for instance, that the Fourteenth Amendment protects a fundamental right to gay marriage is nothing less than oracular. But this is about the outer bound of the possible "liberal" outcomes. Nobody's going to throw the first amendment in the trash.

5) I saw no one consider the audience for these remarks. Any candidate hoping to woo PP will be either promise them the moon, or else be quite as vague about his/her jurisprudential philosophy as a modern-day SCOTUS nominee talking about his substantive due process views. That's just how it is. I would think the gauziness of Obama's remarks ought to hearten all the little Scalias out there; the alternative, given the venue, would be Obama baldly promising a Roe litmus test.

6) Finally, there ought to be some recognition that all the bluster about which judges are OK to appoint, from the Senate floor to this comments board, is designed into the process -- that's why 2 political branches place the personnel on the third branch. Voters ought to expect that in the end they know what kind of judges they'll get based on the candidate they elect. That's why Souter is such a cause of rue for the GOP. The hand-wringing, about how the legitimacy of the judicial branch is at stake whenever an elected politician mentions his values and judges in the same sentence, is a chimerical corollary of the false idea that conservative judges are merely computers processing highly technical law algorithms, while liberal judges are a lot of little Percy Shelleys, legislating on the sly.

I think people are objecting to the outcomes in cases that shouldn't have been easy to decide but turned weird because the constitution dictated an outcome 5 justices didn't like.

Interstate commerce jurisprudence springs to mind.

Takings clause jurisprudence is another gold mine.

And there are always the various unenumerated rights that pop up at a pace depending on how angry the voters got the last time one was discovered.

The real choice is whether the court is leading us back to the text of the constitution or marching onwards to some radiant utopian future, unbounded by constitutional constraints. Do we view the court as the mechanism by which the constitution restrains the government, or do we view the court as a sort of elder council to speed along the progress of society?

No he doesn't consider them categorically flawed, he grants that they are smart, educated, etc--just as say RBG. But he says that in five percent of the cases, they reach a different conclusion than RBG. He suggests that the reason for the difference is 'in the heart'. We ought to be able to agree that 'in the heart' refers to an attribute of someone's character, no?

No. Two people can have different things in their hearts without the difference signifying anything morally superior about either. You're adding a manichean gloss that's belied by Obama's public stand against that kind of demonizing politics, and by consistent anecdotal reports from those who know him. Finally, it's contradicted by the very statement you're quoting. When you say "he grants that they are smart, educated, etc" the "etc" you omit includes that Roberts "seems a very decent man."

In fact, I was thinking of the one who said "Pay no attention to that man behind the curtain." But whether in Oz or the Star Ship Enterprise, the fabulism is much the same.

LM,

"Seems a very decent man" - whom BHO derided as unfit for the office he now holds. Different words, different gloss, but that was - all too precisely - the import. Which is why Caroline Glick's elucidation, also linked above, is precisely that, probative and illuminating along critical lines. She is largely addressing her Jewish readers, but the greater part of it is material of note for all readers.

Don't you people realize the United States Constitution is just words, and words don't matter. That's really what Obama is trying to say - words don't matter.

"Don't tell me words don't matter! 'I have a dream', just words? 'We hold these truths to be self evident that all me are created equal' - just words? 'We have nothing to fear but fear itself?' - just words. Just speeches? - Senator Barack Obama

Obama says that he agrees Roberts is smart and that he agrees that Roberts seems decent. Read through a few sentences and then he declares essentially that this is gloss, because then Obama is saying that it is not what Roberts seems to be but what's actually in his heart that matters.

I've read the fawning accounts of Obama's willingness to listen and hear the other side out, but I've also read enough to believe that Obama takes that idea literally but not substantively. He listens and acknowledges but ultimately ignores. Its a management technique--not an open-mind that he seems to be exhibiting. It has been enough for me to take a second look at Hillary.

Looks to me like Laura S. has Obama down pat. Anyone who speaks in generalities all the time is suspect, IMHO. Obama is the ultimate chameleon. Maybe he grew up in Manchuria. But hey, he's a 'nice guy.'

I've read the fawning accounts of Obama's willingness to listen and hear the other side out, but I've also read enough to believe that Obama takes that idea literally but not substantively. He listens and acknowledges but ultimately ignores. Its a management technique--not an open-mind that he seems to be exhibiting.

I still remember during our discussion of Casey and other abortion cases, he asked the class whether anyone had ever seen a fetal ultrasound. One of the students had a child. He then asked whether what was on the ultrasound at 20 weeks (pre-viability) was a human life. He didn't really get an answer.

He didn't dwell on the point, but the point was made. Honest, well-intentioned people disagree with each other on abortion. I have no doubt that he is pro-choice, but his perspective and how he conveyed it was, to me, striking.

Sounds like someone who takes open-mindedness seriously and sincerely, not just as a management technique.
My politics were farther left at the time and I remember often wishing he'd come out a different way when he was in agreement with the more conservative students in the class. Talking to friends across the political spectrum since he started running, pretty much everyone recalls him being very fair to all sides.

... and hardly an ideologue.

"Unlike some people who make a show of listening and then announce their own opinion, he always struck me as a person who really was trying to listen -- and not just listen but understand," said Brad Berenson, a classmate of Obama's from law school [and former Bush White House Associate Counsel]

If Obama's open-mindedness is a ruse, why do you think Brad Berenson and Obama's other conservative contemporaries didn't sniff it out over two years of constant interaction on the law review? Respectfully, what's the source of your insight that you'd guess they overlooked?

He didn't dwell on the point, but the point was made. Honest, well-intentioned people disagree with each other on abortion. I have no doubt that he is pro-choice, but his perspective and how he conveyed it was, to me, striking.

This is precisely as I said it was. Obama listens and understands an argument against abortion, but where is the proof that this leads him to compromise? As the author writes, "he is pro-choice". So Obama listens, but is unmoved.

"Unlike some people who make a show of listening and then announce their own opinion, he always struck me as a person who really was trying to listen -- and not just listen but understand,"

This is consistent with what I'm saying too. He hears. He understands. But so what? The speaker might feel better but Obama still goes and does the same thing.

This is a point borne out by his voting record in the Senate. He votes like an ideologue, but he charms you in person by listening.

Let's just say for the sake of argument that (a) the Constitution can be interpreted in many ways, and (b) factually inaccurate 95/5 split aside, there are certain cases where what's in a judge's heart matters. What I find troubling are the examples Obama gives of such cases. If you read the full transcript of his remarks, he's very hard on Gonzales v. Carhart, and he also has this to say:

We know, we know it's not just one decision. It's the blow dealt to equal pay in the Ledbetter [v. Goodyear] case, it's the blow dealt to integration in the school desegregation case, it's an approach to the law that favors the powerful over the powerless—that holds up a flawed ideology over the rights of the individual. We don't see America in these decisions—that's not who we are as a people. We're a country founded on the principle of equality and freedom...

And as close as those cases were, I just don't see them being tough cases. Ledbetter's pretty straightforward statutory interpretation, Parents Involved follows directly from Bakke and Croson and Gratz. Obama seems to be saying courts should reach results that are agreeable to liberals regardless of whether such results square at all with the law or not. And even if you accept the premise, what he's saying makes very little sense - where does he get the idea, for example, that Parents Involved held up a flawed ideology over the rights of the individual? Strikes me that that's what Louisville and Seattle were doing, not what the Court did.

where is the proof that this leads him to compromise? As the author writes, "he is pro-choice". So Obama listens, but is unmoved.

The GOP Congressional caucus 1995-2006 prided itself for being an 'ideological army' (Newt's term). Compromise was scorned, and so long as the party voted as a bloc, unneeded. Unsurprisingly, constructive compromise was rare and on Republican terms. Party leaders had enormous power to set the agenda within the caucus.

The Pelosi House has ended some of the more juvenile partisan antics of the previous regime, like refusing to put members of the minority on conference committees.

I think Obama will find it easier to compromise next year with 56 or 58 Democrats in the Senate and additional 10 House seats as well. Meaning, soon, the compromise will be on our terms.

Abortion, fwiw, is a notoriously difficult issue to find common ground on. (Would an anti-choice advocate compromise at legal abortion for 4.5 months and complete prohibition thereafter? I doubt it.)

In any case, it's rich to hear Republicans whining about the lack of compromise from Democrat members of Congress given their recent reign. Democrats have little political incentive to compromise now, as Bush is already a pretty lame duck and will continue to get lamer as the year progresses. Did you notice how his approval ratings are lower than Nixon's in 1974?

So we'll see how much compromise is offered next year. I'm not sure that much is deserved. When Obama mentions Republicans in his coalition, he really means former Republicans that realized they had signed onto a runaway train of incompetence, arrogance, and ideological purity, and have since abandoned ship. McCain has a chance to recover some of those votes, but if he doesn't, we could have a proper realigning election. Don't expect too much compromise while we are waiting to see how that will play out.

In any case, it's rich to hear Republicans whining about the lack of compromise from Democrat members of Congress given their recent reign.

When did I ever say I was a Republican? Anyways, I'm judging Obama on what he claims to be.

Abortion, fwiw, is a notoriously difficult issue to find common ground on. (Would an anti-choice advocate compromise at legal abortion for 4.5 months and complete prohibition thereafter? I doubt it.)

Say what? Compromise could take the form of kicking it back to the states or agreeing on regulations of abortions such as parental notification.

The Pelosi House has ended some of the more juvenile partisan antics of the previous regime, like refusing to put members of the minority on conference committees.

No it hasn't. Pelosi excludes Republicans all of the time; just as Democrats did routinely before 1994. The House is almost always run with an iron fist by the leadership. Everyone knows: compromise is hashed out in the Senate.

You seem to think changing a plank in one's world view is necessary to show an open mind. I disagree. If becoming pro-choice were required to prove a pro-lifer's open-mindedness (or vice versa), there'd be no meaningful difference between someone who considers arguments sincerely, but isn't persuaded, and someone whose mind wasn't open at all. You said Obama "seem[s] to treat the opposition as if they don't have a smidgen of a valid point on their side." Surely acknowledging the validity of a smidgen doesn't require acceding to the argument?

Obama proves his open-mindedness incrementally. Confronting his students with the conflicts between their ideology and their real-life sonogram experiences is an example. That doesn't just show he understands the pro-life argument. It shows he respects it. It validates the argument as legitimate, even if Obama isn't persuaded to adopt it in place of his own. Or do you think pro-choice ideologues routinely confront women with the ambiguous lines that separate the fetuses they abort from the babies they give birth to?

I only quoted from a few of the anecdotes which collectively make the case for his open-mindedness. And they say he's convinced a lot of smart people who watched him closely over time that he respects opposing arguments, and more than just "a smidgen." That was the gist of Brad Berenson's take on why the conservatives backed Obama for President of the HLR. They didn't expect to change his mind, but they were confident he'd give them a fair hearing, and despite his liberal leanings, be an honest broker. And they were apparently satisfied, starting with his appointment of conservatives to key editorial posts, to the consternation of liberals who felt passed over.

So, apart from the spurious notion that you have to change your mind to show you were open to changing your mind, can you explain why it seems that just about the only people who think Obama is insincere are those who don't know him? Because, not to put words in your mouth, but I get the impression you think you have a better handle on his M.O. than, among others, the conservatives like Brad Berenson at the HLR, who Obama somehow managed to persuade of his bona fides.

As staunchly pro-life as I am, I don't see abortion as a valid issue to judge a person's respect for the opposition POV, or his willingness to compromise. To the extent that I would try to find common ground with the pro-infanticiders, I doubt they would feel as if they had participated in a meaningful compromise, or that their opinions had received any significant respect. Ita est.

I see BHO's soothing rhetoric to be just that. No more; no less. The fact that the minority party receives rough treatment at the hands of the majority is a feature of our republican form of government, not a bug. We survived Jimmy Carter; I don't think Barack Obama will present an existential threat to to the USA. I'm hopin', at any rate.

We survived Jimmy Carter; I don't think Barack Obama will present an existential threat to to the USA. I'm hopin', at any rate.

I am concerned that you are wrong. Obama, along with a Democratic majority in the House and Senate can do a lot of harm in 4 - 8 years. I thought the Constitution was supposed to protect people from being run over by majorities - that we have some rights that are sacred and guaranteed, and the whims of the public or judges cannot take them away. However, we appear to be moving away from that and into very dangerous territory indeed.

Laura,
If compromise is a value in and of itself, and you fault Obama for supposedly only paying lip service to it, then it is entirely fair to compare Obama's respectful approach to the partisan rancor emanating from the GOP over their period of dominance and determine that he on the the more reasonable side of the spectrum.

The rules changes of the 1995-> GOP Congress have been in the textbooks for years already. They centralized power within the caucus and marginalized the minority party in several ways (markup sessions? Oh, we already took care of that down on K street.) If compromise is an inherent good, leveling criticism at Obama first and foremost is an awfully selective view of Washington's dysfunctionality.

Anyways, I'm judging Obama on what he claims to be.

No, you aren't. Obama didn't claim to be a centrist, incremental compromiser, Broderist, Clintonian triangulator, even though there was a phase in the primary campaign when Clinton supporters tried to make out that he was. He said he could build a working majority for change by reaching out to disaffected independents and Republicans. Obama's appeal to those groups has more to do with Iraq, Iran, and not being a phony who treats his political opponents as lesser citizens. Not being a requires means not compromising one's values for the sake of expediency unless the trade-offs are really compelling. With political change on the horizon, waiting until after the election to see what sort of trade-offs can be negotiated with the GOP minority makes perfect sense, and is entirely consistent with his political message. If Obama loses the election, the negotiations will be very, very different, but in the meantime, whining about a lack of compromise or a modicum of centrist policies is just a phony way of screaming "liberal!" As if that was some kind of surprise. Sorry, no flip-flops here.

Obama's a liberal. Not a knee-jerk liberal, but a liberal. His candidacy is predicated on the country having taken a big step to the left in revulsion with Republican misrule, and if he's correct about that, some of you out there are going to have to adjust your expectations and be thankful that Obama is less prone to demonize his opponents than most pols.

I do not claim that you must change your mind to be of open-mind. I suggest, however, that a pattern of change is proof of an open-mind whereas being able to restate your opponent's arguments is not proof of an open-mind.

Surely acknowledging the validity of a smidgen doesn't require acceding to the argument?

That depends on whether your initial policy included that smidgen or not. If it didn't then acknowledging the smidgen should shift your policy a smidgen.

Acknowledging the validity of a argument but then ignoring the conclusion is a powerful way of wrong-footing your opponents.

I invite you to define 'knee-jerk liberal'. Then be prepared to defend your remarks against the evidence of his senate voting record.

No, you aren't. Obama didn't claim to be a centrist, incremental compromiser,

One of the things Obama purports to be is "post-partisan". Many voters assume this means centrist compromiser. The evidence suggests charismatic steamroller is a more accurate conception.

leveling criticism at Obama first and foremost is an awfully selective view of Washington's dysfunctionality.

You keep returning to this subject as if I am an apologist for the Republican party. I'm not. I usually vote democratic, and I consider myself a centrist-liberal. Obama may well win because he's not a republican, but that's hardly germane to the discussion at-hand.

If the important cases are to be decided by justices on the basis of what's in their heart, then, where the Constitutionality of laws is concerned, they are just usurping the power of the legislative branch. Why should we expect justices to have better hearts than legislators? Don't we hire them for their expertise?

Of course the Constitution could not have been written to cover explicitly every case that might arise. But when Obama says "the Constitution can be interpreted in so many ways," mostly what I hear is just a typical politician's attempt to justify evasion of Constitutional limitations on federal power.

I suggest, however, that a pattern of change is proof of an open-mind [...]

Yeah, and Republicans popularized a word for it: "flip-flopping."

Surely acknowledging the validity of a smidgen doesn't require acceding to the argument?

That depends on whether your initial policy included that smidgen or not. If it didn't then acknowledging the smidgen should shift your policy a smidgen.

You keep making this absolutist argument that in order to acknowledge the legitimacy of a position you have to adopt it as your own. That falsely assumes there can't be more than one valid position. I'm surprised a self-declared centrist like yourself would make such an argument.

It's also ironic that you continue to attack Obama's sincerity based only on your conjecture, while accusing him of too casually questioning the sincerity of others.

But above all, I'm waiting for you to explain why you suppose you're on to Obama's charade, when so many of his actual opponents have been taken in. Are Berenson and his cohorts just credulous rubes who never met a slick-talking operator? Or is it possible you're the one whose perception is clouded?

By that definition alone some of the worst actors in history would fall under the rubric of "not being a phony." Iow, that's merely one aspect of it. Another aspect is it means not pretending you're someone you're not.

E.g., when Obama hired Nation of Islam staff to head aspects of his senate campaign and to work in his senate office, it makes a statement. (One of the names is Jennifer Mason).

E.g., when he says one thing about Rev. Wright at one point, then says something else at another point, it makes a statement.

And why should we take the National Journal's account of BHO as the most left of center senator, out of all one hundred senators, with a large grain of salt? Their rankings reflect a transparent, non-partisan approach that actors on both sides of the aisle have commented upon and referred to favorably.

The NJ rankings have some value, but they are very flawed. With most Senate votes being party line, the differences in the voting records of most Democrats (and Republicans) is small. A couple of stray votes for idiosyncratic reasons can separate two senators by several places on the list. In the meanwhile, what gets overlooked entirely is how much more liberal (or conservative) or less liberal (or conservative) a bill any given senator might have preferred, but they all get the same score for voting the same "yea" or "nea.". Also, the rankings exclude entirely anyone who missed more than a certain percentage of votes. So, for example, John McCain isn't even on this year's list. The bottom line is Obama is inarguably liberal, but nobody thinks he's even close to, say, Bernie Sanders, Russ Feingold or Barbara Boxer, to name just a few that come to mind. And I'm sure if I had the Senate roster in front of me, others would jump out too.

Oh please. Flawed? If that's to suggest they are not absolute indicators in a "scientific" and purely deductive sense, fine, but the methodology they use (outlined here) is transparent and always has been, from the inception. And no, it's not true that "nobody thinks he's even close" to people such as Feingold, there are plenty of people who believe him to be very much in the Feingold mold, perhaps even left of Feingold, and, conspicuously, the National Journal rankings serve to emphasize that very point (***). Some have even suggested an Obama/Feingold ticket (unlikely in the extreme, I'd assume) and Feingold himself said he voted for Obama in Wisconsin's primary. Likewise, I don't see you balking at any of the pro-BHO commentary in this thread with a "flawed" caveat.

*** For example, BHO had been an extremely vocal supporter of Feingold's Iraq withdrawal legislation wherein a definitive date for withdrawal was set in stone. But when Feingold removed the required end-date (the date all troops would be absolutely forced to withdraw from Iraq) from the bill in order to gain wider support in the Senate, Obama withdrew his support and cited the removal of the intractable end-date as the reason for no longer supporting the Feingold bill. That's a single instance only, but it's an instance wherein Obama was more entrenched and more to the left, in that sense, than Feingold.

You keep making this absolutist argument that in order to acknowledge the legitimacy of a position you have to adopt it as your own. That falsely assumes there can't be more than one valid position. I'm surprised a self-declared centrist like yourself would make such an argument.

My argument isn't absolutist. You insist on viewing policy as a set of discrete choices. It is not (usually). As a continuum there is room for marginal change. Again to go back to a previous example: fetal viability as a rule is an example of such a compromise which reflects recognizing both arguments.

And no, it's not true that "nobody thinks he's even close" to people such as Feingold, there are plenty of people who believe him to be very much in the Feingold mold, perhaps even left of Feingold, and, conspicuously, the National Journal rankings serve to emphasize that very point (***).

I'm sorry. Some Republicans, who have an obvious rooting interest in the ranking's validity, believe it. No liberal or moderate believes it, nor did they before Obama was a presidential candidate. Here's Norm Ornstein's take, from the American Enterprise Institute:

"To anyone who has spent more than a nanosecond around the Senate and has seen, met or watched Bernie Sanders (I-Vt.), Barbara Boxer (D-Calif.) or Russ Feingold (D-Wis.), among others, this rating is pretty ridiculous--as was the equally ballyhooed National Journal ranking of John Kerry (D-Mass.) as the most liberal Senator in 2004."

That's fine too. NJ is one ranking, based upon the Senate voting record for a full year. I didn't suggest others should conform to the study, I more simply indicated it 1) has a specific methodology, 2) renders the study and the methodology in a transparent manner (no black box, no tricks or machinations involved) and 3) is a worthwhile measure in that respect. The voting record for one full year, in this case 2007, isn't everything, but, for a legislator, it ain't nothing either; voting upon, in addition to sponsoring and co-sponsoring legislation, is what legislators are tasked to do in the main.

My argument isn't absolutist. You insist on viewing policy as a set of discrete choices. It is not (usually). As a continuum there is room for marginal change.

You're mixing apples and oranges. I of course agree that policy is usually a continuum that can change in lots of ways. That's not in dispute. Where you're being absolutist is saying I have to shift every part of my policy for which I accept the validity of your argument, as if there can't be more than one legitimate argument. It's both principled and honest to accept the validity of another's position without necessarily changing any part of your own. But you disputed that, when you said,

That depends on whether your initial policy included that smidgen or not. If it didn't then acknowledging the smidgen should shift your policy a smidgen.

Isn't demanding I shift every smidgen of my policy for which I accept the validity of your argument dividing policy into constituent smidgens, and then treating each smidgen absolutely? Aren't you both "viewing policy as a set of discrete choices" and being absolutist?